Protecting Children, Families, and Tribes: The Importance of ICWA

On October 4th U.S. District Court Judge Reed O’Conner ruled in Federal Court that the Indian Child Welfare Act of 1978 (ICWA) was unconstitutional. Subsequently he denied a stay that was requested by the Cherokee Nation and four other tribal leadership groups, who argued that allowing states to ignore ICWA, while the case moved through the courts, would cause irreparable harm to American Indian/Alaska Native (AI/AN) children, families, and tribes. The initial ruling and denial of the stay undermine decades of federal policy and legal precedent intended to protect AI/AN children, families, and tribes. More broadly, this is a step backward for child welfare as ICWA provides a gold standard and blueprint for better serving families.

A long history of United States government policy—including the removal of AI/AN children from their homes and placement in boarding schools—has sought to eradicate American Indian culture, sovereignty, and way of life. As a result of these policies, ICWA was designed to provide protections for AI/AN children and families and reduce the impact of negative policies that promote family separation.

AI/AN children and youth have a unique legal status as citizens of tribal governments with federal laws, like ICWA, that provide important safeguards to help maintain tribal and family relationships. Despite these important protections, AI/AN children are still overrepresented within state foster care systems nationally and in some states their rates in foster care are as much as 10 times their population rate. Rather than undermining and allowing states to ignore the requirements in ICWA, there has never been a greater time to ensure effective implementation and adherence to the law.

Not only does ICWA promote and ensure protections for AI/AN children and families, it is known within child welfare policies as the “gold standard” as it requires higher levels of parental engagement and efforts to keep families together; parent representation in court proceedings; and placement of children with relatives and in their communities when they can no longer safely remain with their parents.

Research has consistently shown that connections to a child’s extended family and community are mitigating factors in reducing the trauma that is often experienced prior to a child’s placement in foster care or during their removal. Specifically, research has found that AI/AN communities are rich in culture, have a deep commitment to family, kinship, and community and are rooted in spirituality. Studies have also shown these strengths not only build healthy communities but play an important role in mitigating trauma and increasing resiliency in AI/AN children and youth.  

ICWA was and is needed both to promote the best interests of children, their families and their communities—and as a critical protection of AI/AN rights. As we look toward the future and consider best practices and new ways to support children and families ICWA serves as an example of meaningful policy and practice to keep kids in their families and communities whenever safe and possible. ICWA was established as an important protection, one that is needed more than ever today, and one that should serve as a guide to best practice for families in the future.